Harder v.s State of UP 30 March 2016

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 186 OF 2016

                [Arising out of S.L.P.(Crl.)No.3438 of 2014]

Hardei                                                   …..Appellant

      Versus

State of U.P.                                       …..Respondent

                               J U D G M E N T

SHIVA KIRTI SINGH, J.

This appeal is directed against order dated 29.01.2014 by the  Hon’ble  High

Court of Judicature at Allahabad dismissing Criminal  Revision  No.2554/2013

preferred by the appellant seeking relief  against  order  dated  09.07.2013

passed by the Chief Judicial Magistrate, Amroha, the trial Court,  summoning

the appellant, in exercise of power under  Section  319,  Code  of  Criminal

Procedure, to face trial in Sessions Trial No.9191 of 2010 (State Vs.  Omkar

&  Ors.)  arising  out  of  Case  Crime  No.1364  of  2010  under   Sections

420/467/468/471/409, IPC pertaining  to  Police  Station  Amadpur,  District

Amroha, Uttar Pradesh.

Before adverting to the rival submissions, the relevant facts may  be  noted

in brief.  The FIR bearing No. 53 of 2010 leading to this  case  was  lodged

on 20th July 2010 by R.D. Sharma, the Project Director  of  a  scheme  under

the Mahatma Gandhi National  Rural  Employment  Guarantee  Act  (hereinafter

referred to as ‘MNREGA’ Scheme). One Rahul Yadav,  a  Junior  Clerk  in  the

Amroha Block  Office  and  one  Omkar  Singh  were  named  as  accused  with

allegation that they had, as per enquiry report, prima  facie  embezzled  an

amount to the tune of Rs.49  Lacs  from  official  account  for  the  MNREGA

Scheme, thereby attracting offence under Section 409 IPC.

In the Special Leave Petition there is reference to another FIR bearing  No.

50 of 2010 dated 16th July, 2010 lodged by one Mr.  Muneshwar  Singh,  Block

Development Officer, Gangeshwari, (J.P. Nagar).  In this FIR the same  Rahul

Yadav, Junior Clerk alone has been named as an accused  with  allegation  of

cheating and embezzlement in respect of an amount of Rs.25 lacs  of  MNREGA.

However, in course of further hearing it was made clear by  learned  counsel

for the appellant that the present proceeding does not arise from  this  FIR

and the whole purpose of annexing a copy of this FIR was to  draw  attention

of this Court to allegations to  the  affect  that  the  appellant  although

signed cheques  for  withdrawal  of  money  from  MNREGA  account,  she  was

innocent and had been cheated by Rahul Yadav.

The written notes of arguments on behalf of the appellant also clarify  that

the instant proceedings arise only out of FIR No.  53  of  2010  leading  to

Crime No. 1364 of 2010.  The first charge-sheet  dated  3.10.2010  was  only

against Omkar Singh and the other was  filed  subsequently  against  accused

Rahul Yadav, after he surrendered.

The criminal case progressed as Trial  No.  9191  of  2010  and  after  some

witnesses had been examined, an application under Section 319  of  the  Code

of Criminal Procedure  was  filed  by  the  Prosecution  on  4.7.2013.   The

application discloses that the case was fixed for evidence  and  prosecution

had already examined five witnesses including PW-1,  R.D.  Sharma.   On  the

basis of evidence of prosecution witnesses recorded in the course of  trial,

it was urged in the application that involvement  of  Muneshwar  Singh,  the

then Block Development Officer and  the  appellant  Smt.  Hardei,  the  then

Block Pramukh  of  Kshetra  Panchayat,  Gangeshwari  had  emerged  and  such

materials were also  available  in  the  statement  of  concerned  witnesses

recorded under Section 161  of  Criminal  Procedure  Code.   The  prayer  to

summon both of them under Section 319 Cr.P.C. was considered by the  learned

Chief Judicial Magistrate, Amroha.  He, after  noticing  in  particular  the

statement made by R.D. Sharma as P.W.1, came to the  conclusion  that  prima

facie offence was made against both  the  proposed  accused  and  hence  the

application was allowed by order passed  on  9th  July,  2013.   As  already

noticed, the High Court affirmed the order of the  Magistrate  by  rejecting

Criminal Revision preferred by the appellant on  29.1.2014  and  that  order

has given rise to the present appeal.

Mr. R. K. Kapoor, learned counsel for the appellant has relied heavily  upon

the fact that the appellant was not named as an accused in the FIR  nor  any

charge-sheet was submitted against her after  completion  of  investigation.

He further submitted that the amount has been embezzled  mainly  by  accused

Rahul Yadav and Omkar Singh and therefore,  the  defence  of  the  appellant

that she was illiterate lady who does  not  know  even  to  sign  much  less

reading or writing should have been accepted by the Magistrate and the  High

Court.  It was pointed out that in the FIR lodged  by  co-accused  Muneshwar

Singh against Rahul Yadav, the defence of the appellant  was  clearly  spelt

out.

Learned counsel for the State of U.P.,  on  the  other  hand  supported  the

summoning order of Chief Judicial Magistrate as  well  as  the  order  under

appeal by the High Court.  According to him, there is no denial of the  fact

that along with Muneshwar Singh, this appellant  was  the  co-signatory  and

only with  their  signatures  money  could  be  withdrawn  from  the  MNREGA

account; therefore, in such a situation  the  statement  emerging  from  the

deposition of the complainant/informant  R.D.  Sharma,  P.W.1  that  amounts

used to be withdrawn jointly by the appellant and the Muneshwar  Singh,  the

Block Development Officer  and  hence  they  are  also  answerable  for  the

embezzlement of the concerned amount could not  have  been  ignored  at  the

present stage in anticipation of  defence  of  the  appellant  that  she  is

illiterate and cannot sign her name and that she was duped or cheated by co-

accused Rahul Yadav.

Having given our anxious consideration to the rival submissions, we find  no

good reason to interfere with the order under appeal.

It is well accepted in criminal jurisprudence that F.I.R.  may  not  contain

all the details of the occurrence or even the names of all the accused.   It

is not expected to be an encyclopedia even of facts  already  known.   There

are varities of crimes and by their very nature, details of some crimes  can

be unfolded only by a detailed and expert investigation.  This is more  true

in crimes involving conspiracy, economic offences or cases  not  founded  on

eye witness accounts.  The fact that Police chose not to send up  a  suspect

to face trial does not affect power of the trial court under Section 319  of

the Cr.P.C. to summon such a person on account of evidence  recorded  during

trial.  This is the factual scenario in the case at hand also.

 It would not be  proper  for  us  to  deal  with  detailed  merits  of  the

prosecution case or  the  defence  case  at  this  juncture.   Hence,  while

dismissing the appeal, we make it clear that the observations  made  in  the

impugned orders or this order shall not have any adverse effect on the  case

of either of the parties.  It is also made clear that  the  appellant  shall

be at liberty to take all the defence available to her, in  accordance  with

law, in  course  of  the  trial.   The  appeal  stands  dismissed  with  the

aforesaid observations.

                       …………………………………….J.

                       [DIPAK MISRA]

                       ……………………………………..J.

                             [SHIVA KIRTI SINGH]

New Delhi.

March 30, 2016.

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